Despite President’s veto concerns over judicial reforms and Rule of Law remain

Brussels, 25 July 2017 - Polish President Andrzej Duda’s announcement on Monday that he would veto two of three controversial laws which seriously threatened judicial independence in Poland has been an unexpected and welcome development after tensions mounted over the past weeks over the ruling Law and Justice (PiS) party’s latest attempt to undermine the Rule of Law by taking control over the judiciary. Yet, although the risk has been temporarily thwarted, serious concerns remain.

The two laws were part of a set of amendments – the Act on the National Council of the Judiciary, the Act on the System of Common Courts and the Act on the Supreme Court – put forward by the government and adopted by both the lower (Sejm) and upper (Senate) chambers of the Polish Parliament in a matter of days between 12 and 22 July. The process through which these Acts were submitted and passed as well as their content sparked controversy in Poland and across Europe. Each of these Acts has the potential to severely curb the independence of the judiciary and undermine the separation of powers, an essential component of the Rule of Law, in Poland. It would be in breach of Poland’s own Constitution (Article 45), EU principles and standards as laid out in Article 2 of the Treaty on European Union (TEU) and the EU Charter of Fundamental Rights, as well as other international obligations which Poland has signed up to.

While President Duda’s veto has for now prevented the Act on the National Council of the Judiciary and the Act on the Supreme Court [1] from being signed into law, the Act on the System of Common Courts – passed by Parliament on 15 July – has passed presidential scrutiny and will soon enter into force. This Act, which gives the Justice Minister (who is also the Prosecutor General, thus already holding vast powers to intervene in proceedings) the power to appoint presidents and vice-presidents of all lower courts, seriously threatens the independence of the Polish judiciary [2]. It also puts the right to an effective remedy and the right to a fair trial at risk.

As for the two laws which have been vetoed, these have now been sent back to the lower chamber of the Polish Parliament, which may still try to force them through. In order for the Parliament to readopt the laws, overlooking the presidential veto, two cumulative conditions must be fulfilled: at least half of the members of Parliament must participate in the vote and the law must be passed by a three-fifth majority. President Duda is also expected to submit amendments to the two draft laws within two months. The risk that they will be adopted with no or minor changes thus remains high.

These latest attacks on the judiciary take place against the background of a wider deterioration of the Rule of Law in Poland since the current government came into power in October 2015. They must be seen in the context of a wider sequence of reforms which have undermined checks and balances – notably through reforms which adversely affected the Constitutional Tribunal and infringed upon its independence – and restricted human rights in the country, including freedom of expression and media freedom, freedom of assembly and women’s sexual and reproductive rights. They reinforce the assessment made by the Commission a year ago that there is a systemic threat to the Rule of Law in Poland [3] and call for further action to address a clear risk of a serious breach by the Polish government of the values referred to in Article 2 TEU, notably respect for democracy, the rule of law and human rights.

“We urge the Polish authorities to refrain from adopting reforms and withdraw existing laws, such as the recently adopted Act on the System of Common Courts, which would further threaten the Rule of Law by undermining checks and balances and restricting human rights.”
Dan Van Raemdonck, FIDH Secretary-General.

The government should also acknowledge the fundamental role of civil society in scrutinising and ensuring accountability for public action and provide an enabling environment for civil society organisations.

The European Union, particularly the European Commission, should continue to monitor the situation and pressure the Polish government to avoid taking any measures which curtail judicial independence and weaken checks and balances, and to closely scrutinise the recently adopted Act on the System of Common Courts and its compatibility with EU law.

"It is time that the EU reacts strongly to Poland’s attack against its founding values and holds the government to account for its failure to cooperate and ensure respect for its obligations under the Treaties. Any reaction should look at the whole set of violations of EU principles and standards under the current government.”
Dan Van Raemdonck, FIDH Secretary-General.

FIDH and AEDH stand in solidarity with civil society across Poland, whose mobilisation has been key in countering the government’s anti-democratic agenda.

Footnotes

[1] The Act on the National Council of the Judiciary (NCJ) would have significantly expanded the Parliament’s role in the appointment of judges, thus increasing the risk of politicised appointments and undermining judicial independence, while reducing the NCJ’s powers to the advantage of the Minister of Justice. The Act on the Supreme Court would have severely undermined the independence of the Supreme Court, by forcing its members to retire and granting the Minister of Justice the power to prematurely terminate their mandate; new competences regarding disciplinary proceedings against Supreme Court judges would have also been introduced by the proposed amendment.